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New Tobacco Ad Restrictions Will Be Overturned

It seem likely that the advertising restrictions included in the tobacco regulation bill approved by the Senate yesterday (and previously approved by the House) will be overturned on First Amendment grounds.

The restrictions, which are the same as the rules the Food and Drug Administration unsuccessfullly tried to impose in 1996 without statutory authority, include bans on tobacco-brand sponsorship of sporting or entertainment events, on outdoor advertising within 1,000 feet of a school or playground, and on the use of color or pictures in outdoor ads, indoor ads (except those in adult-only businesses), and print ads carried by publications with significant underage readerships.

These restrictions are much more sweeping than state limits on tobacco advertising that the Supreme Court overturned in 2001. That case involved Massachusetts regulations that banned tobacco billboards within 1,000 feet of a school or playground and required merchants to place point-of-sale advertising at least five feet above the floor. The Court concluded that both provisions failed the constitutional test for restrictions on commercial speech that it set forth in its 1980 Central Hudson decision.

The test says such restrictions must directly advance a substantial government interest through means that are no more extensive than necessary (which in practice has amounted to requiring a "reasonable fit" between ends and means). Although the Court agreed that discouraging underage smoking is a substantial government interest, it concluded that the billboard and sign restrictions were unjustifiably broad. If so, it's hard to see how the more onerous restrictions in the Family Smoking Prevention and Tobacco Control Act can meet the Central Hudson test.

The Center for Tobacco-Free Kids, which collaborated on the new law with Philip Morris (a company that, as the market leader, stands to benefit from the anti-competitive effects of the ad limits), counterintuitively argues that heaping on more restrictions will help the law pass muster: "The fact that the FDA restrictions are more comprehensive than those considered in Massachusetts strengthens the argument that it meets the First Amendment standard because it fully considers the marketing problems being addressed and considers the ability of manufacturers to communicate with consumers."

That seems like wishful thinking. Five justices agreed that the Massachusetts billboard restrictions were unconstitutional. (The majority included Clarence Thomas, who also wrote a concurrence in which he reiterated his longstanding view that "when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as 'commercial.'")

The four other justices also were skeptical that the regulation satisfied the Central Hudson test, but they said the case (which came to the Court as an appeal of a summary judgment) should be remanded for a trial to consider the question. The two justices who have joined the Court since 2001—John Roberts and Samuel Alito—do not seem more receptive to restrictions on commercial speech than the justices they replaced (William Rehnquist and Sandra Day O'Connor, respectively).

A decade ago in Reason, I examined the empirical case for restricting advertising to reduce underage smoking.


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